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I’ve tried desperately to avoid reading about the Schiavo case, and I can’t change the television channel fast enough when there is video footage of Terri Schiavo straining in her bed. It’s too painful, there is nothing I can do about it, and per usual, a very difficult and personal family issue has been presented in an absurdly simplistic way that aggravates me no end. The discussion is made into one about who is morally, legally, and medically right or wrong. Both sides righteously claim to be serving Ms. Schiavo’s “best interests”, but from all outward appearances seem more intent on vilifying the other side rather than looking to her needs. She certainly does not need a “scorching multiyear legal battle.” Mr. Schindler, Ms. Schiavo’s father, terms his fight a “spiritual battle” against the “devils in the room”, while George Felos, Mr. Schiavo’s attorney, refers to the actions of the other side as “thuggery” by fanatics.
This resulting street fight---that is what it is--- is quintessentially American. There is the perfect mix of science and religion. The Doctors diagnostic certainty of Ms. Schiavo as being in a “Persistent Vegetative State” is contrasted with the perfect faith and belief in a God that has dictated clear instructions on the nature of life. We like our fights clearly drawn so we can choose sides in the resulting crusade. This is a Passion Play, if ever there was one. The script follows almost to the word the original of the torture and crucifixion of Christ. The innocent sacrificial victim is known. All the rest of us have to do is decide who we are: the Roman persecutors or the Christian protectors. Of course, what’s a Passion Play without the betrayers, in this case, those would be anyone who might counsel negotiation.
I did a ‘Google’ search in gathering background information. The key word “Schiavo” yielded 1,280,000 results; “Schiavo-settlement”, or “-negotiation”, or “-mediation”, gave zero results. There apparently was some effort by the court appointed Guardian Ad Litem, Jay Wolfson, to mediate a settlement, but reports differ as to who was more intransigent, Mr. Schindler or Mr. Schiavo. I have no information as to the GAL’s background or training as a mediator, but the roles GAL and mediator, while they might converge, aren’t necessarily the same and sometimes can be in conflict. But after a fair amount of investigation, I could find no evidence that there had been any real push from either side to negotiate, nor any active outside encouragement.
Yet, there is no reason to think that the matter might not be susceptible to mediation, at least, before being placed in the center ring of our cultural-political circus. And, more importantly, we need to challenge the unwarranted assumption that from all appearances, this matter could not be resolved without judicial or legislative intervention. Anyone who has practiced in this context--- lawyers, social workers, doctors, and judges ---know that neither of those approaches are particularly effective to resolve the kind of complex and increasingly common situation the Schiavo matter reflects. They are last resorts. It is at once an emotional/personal matter with, medical, legal, and economic ramifications. No law could be designed to be specific, yet flexible, enough to not require interpretation, and no Judge ever willingly takes on the burden of making the most difficult decision to end another human beings life, as Judge Greer is compelled to do in this case.
Ironically, lest this case be taken as the norm, end of life decisions are negotiated every day by families with their doctors throughout the country. Since the Karen Ann Quinlan matter in 1976, a fair number of health care facilities have developed processes that allow for the negotiation and mediation of difficult health care decisions, but those programs are uneven and vary widely in the extent to which they are available or used. Even when used, it would be naïve to think that the resulting settlements are anything less than painful, imperfect, and excruciatingly difficult. Many times family members disagree with each other or with the professionals, and sometimes take on a “don’t ask-don’t tell’ quality that comes perilously close to the legal line as all concerned choose to be be humane, despite the law.
My mediator gut instinct is to hear past the stated positions of all sides. I have my own biases that cut across both sides in this particular case. I know I don’t want the state, a Priest, Rabbi or Iman, let alone the United States Congress to make end-of-life decisions for me, and I don’t want a court to decide what I might have intended. The idea of intruding into someone else’s personal life is offensive to me. At the same time, while I’m sorry Ms. Schiavo never executed a clear medical directive, she could have and did not and I am reluctant to rely on anyone’s word to interpret her intention about a decision so final. The doctors’ medical diagnosis is a factor, but cannot be determinative and I have questions about how physically uncomfortable she is in her present condition, if that can be known, that necessitates an affirmative action to end her life.. Finally, I don’t believe that I have to be cynical or dubious about Mr. Schiavo’s intentions or motivations to note that the presence of a one million dollar personal injury award settlement might color this situation. But, my confusion is detached from any moral construction. In the end, however, as much as commentators do their armchair quarterbacking about the medical directive that should have, in a perfect world, been in place, it seldom works like that and majority of situations end up just like this one---messy. Like most conflicts, there are few, if any, saints or devils; just people struggling to make things just a little less painful.
Knowing all that, however, does not seem to blunt our cultural heritage that despite our pragmatic nature, discourages negotiation in favor of a right vs. wrong determination, imposed on all by the majority on the errant minority. We are taught there is a right answer to every problem from kindergarten. We are taught that we should argue, advocate, and if what we are fighting for is right, we will win. We aren’t taught how to survive---how to make things work just enough, and how to not be more intrusive than necessary in other’s peoples’ lives. Even if mediation had been tried in earnest in this matter, I don’t know if it would be successful; none of us can know that at the beginning. There is, however, no reason to think that it could not be. While there have been an abundance of moralistic pronouncements on both sides, that’s not unusual in most difficult conflicts. There is always posturing about what we deserve, what’s fair or what God wants of us. Those who suggest that you can’t negotiate when the other side is unreasonable or crazy, or it is a value conflict, haven’t studied history or dealt with many conflicts. All of us negotiate sometime---even when we claim we can’t or won’t. This situation is no different, except that the stakes are higher.
People don't particularly like to negotiate and do it only as a last resort. By that time, as is unfortunately apparent in the Schiavo case, the media glare and political angling have severly undercut the opportunity for private negotiations. Negotiation requires a certain measure of secrecy so that people can say what they are really thinking, not what they think people want to hear. Then, not without difficulty or emotion, they quite possibly might negotiate the allocation of the settlement funds, terms of responsibility for her care and a process for making future health and welfare decisions and when, if, and even how she should die. All of the stuff about which the outside world has the luxury of giving an opinion without having to endure the consequences.
The Schiavo case could be negotiated, but probably won’t be. Too many other people now have gotten into the act and have vested interests in maintaining the dispute. The timing isn’t right, and in negotiation, timing is everything. Knowing how to recognized good opportunities or to make them, it critical to success. The real tragedy of this case is that there is serious question about how much effective, skillful, sophisticated effort was brought to bear on the parties’ involved to make sure they knew that option was available.
As a society we don’t appear ready to allow ourselves to think or act in ways that encourage negotiation as a preferred mode of conflict management and it remains an afterthought. As Americans, we still dislike negotiation; God knows John Wayne would never negotiate---it’s a sign of weakness. Worse still, especially in this matter, negotiation carries an immoral taint, that is for some associated with the work of Satan, whose primary modus operandi is to “negotiate for your soul.”
Eventually, negotiation and mediation will be more readily available by design, for families in the health care system to deal with not only end of life decsions, but many other wrenching and difficult matters. Painfully, the Schiavo matter points up not only that we should be better about health care planning, but as well, the need to understand that no planning is full proof and there will always be the necessity to negotiate our way out of confused situations. And, the more complex the matter, emotionally, financially, legally, and in every other way, the more negotiation will be obligated. We have overlooked, resisted and failed to teach this fundamental skill set for too long. Our next task as a culture is to recognize the limits of law to solve the more complex problems of living and to garner the personal and moral strength to appreciate that we must arm ourselves with the skills to negotiate not only in our lives but for our deaths. We have to strip from the Devil his most potent skill and use it for good. He negotiates to take our souls, we need to learn to negotiate to save a soul or two. God knows Congress can't save souls. As best I can figure, if a soul is to be saved it is only done by how we treat each other as human beings in the most difficult circumstances.
March 19, 2005
Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.
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